Zweig v. Fireman's Fund Indemnity Co.

DOOLING, J.

Cross-appeals by plaintiffs-appellants Leo Zweig and Celia Zweig and by plaintiffs-appellants Robert E. Allen and William C. Allen, doing business as Allen Bros., from a judgment of the superior court entered in actions Number 57770 and Number 57201, consolidated for trial, that the parties to the said actions should take nothing.

Appellants Allen, general contractors, brought an action to foreclose a contractors claim of lien against Leo and Celia Zweig with whom they had contracted for the construction of a home. The Zweigs answered and set up a counterclaim. They then filed a complaint on a contractor’s bond joining the Allens and Fireman’s Fund Indemnity Company, surety on the building contract between the Allens and themselves, as defendants. These two actions were consolidated for trial.

The building contract out of which these actions arose was entered into on October 6, 1950, between Leo Zweig and Celia Zweig, his wife, as owners, and Robert E. Allen and William C. Allen, copartners doing business as Allen Bros., as contractors and builders. The Allens were to construct a home for the Zweigs on a lot owned by the latter in San Mateo. The labor and materials were to be supplied by the contractors (Allens) and the work was to be completed within 75 working

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days after October 23, 1950, the day set for work to begin. The contract price was $15,475 to be paid in installments as the work progressed.

On October 9, 1950, a completion bond conditioned on the performance of the contract in accord with the plans and specifications was entered into by Fireman’s Fund Indemnity Company and the Allen Bros, and delivered to the Zweigs.

The Allens commenced construction of the house about October 23, 1950, as was agreed in the contract. Mr. Zweig apparently began to notice certain deviations from the plans and specifications and certain imperfections in the material being used by the contractors rather early in the building process. He testified that he made known to Robert Allen, one of the contractors, his objections to the way the work was being done. He stated that he made these objections both orally and in writing to the contractors as he became aware of the imperfections and deviations, as it was his understanding of the contract that it would be necessary for him to call such matters to the Allens’ attention before the work progressed beyond the phase of construction involving the particular objections. As work on the house progressed Zweig’s objections to the performance of the contractors multiplied. A series of letters and other communications relative to these complaints were exchanged between the parties. An arbitration of these differences as provided in the contract was attempted by the parties but proved ineffectual. Work on the house by the Allens ceased about the end of January, 1951, or the middle of February, 1951. By this time three progress payments had been made by the owners to the contractors in an amount of $9,285. The house was later completed by another contractor, William C. Smith, in February of 1952.